Passage of Time as a Standalone Ground for Dismissal: High Court applies Kirwan’s five‑year inactivity rule and clarifies what counts as a “step in the proceedings”

Introduction

This commentary examines Murphy v Aer Lingus Group PLC & Anor [2025] IEHC 589, a High Court of Ireland decision delivered by Heslin J. on 31 October 2025. The case arises from a personal injuries claim issued in August 2013 by a cabin crew member, Ms. Emily Murphy, who alleged injuries following a “heavy landing” of an aircraft on 13 August 2011 during a Dublin–Birmingham flight.

Twelve years after proceedings began, the defendants (Aer Lingus Group PLC and Aer Lingus Limited) applied to dismiss the claim for want of prosecution due to prolonged delay. The judgment is significant for its faithful and practical application of the Supreme Court’s recent decision in Kirwan v Connors & Ors [2025] IESC 21, which recalibrated the Primor test by giving much greater weight to the passage of time and by introducing clear “milestones” for inactivity. It also clarifies an important procedural point: a motion by a solicitor to come off record is not a step in the proceedings for the purpose of assessing inactivity.

Summary of the Judgment

The High Court dismissed the plaintiff’s claim for want of prosecution, applying the Supreme Court’s framework in Kirwan v Connors with emphasis on the five‑year cumulative inactivity threshold.
Heslin J. found a cumulative period of complete inactivity exceeding five years. Under Kirwan (para. 26(iv)), the court is “free to dismiss” unless satisfied there is a “pressing exigency of justice” to allow the case to proceed. No such exigency was identified.
The case was highly dependent on oral evidence; any trial would occur roughly 15 years after the events. While specific prejudice is not required at the five‑year threshold, the court noted the obvious risk of degraded memory.
The defendants were proactive and did not acquiesce in the delay; numerous letters and motions to compel showed active efforts to progress the case.
A solicitor’s motion to come off record (issued mid-October 2025) is not a “step” in the proceedings and did not interrupt the period of complete inactivity.
An adjournment sought by the plaintiff’s solicitor (who had no instructions) was refused, inter alia in the public interest to avoid wasting limited court resources.
Costs were awarded to the defendants, with final orders listed for 7 November 2025.

Analysis

1) Precedents and authorities cited

Kirwan v Connors & Ors [2025] IESC 21: The Supreme Court reformulated the approach to applications to dismiss for delay (previously guided by Primor), placing substantially greater emphasis on the mere passage of time. The Chief Justice identified four key milestones (para. 26):
- (i) Before two years’ inactivity: Dismissal only for abuse of process or where prejudice meets the O’Domhnaill v Merrick threshold.
- (ii) After two years’ total inactivity: A claim may be dismissed; typically some additional factor will be present. If not dismissed, courts may impose strict case management directions.
- (iii) After four years’ total inactivity: If the claim depends on oral evidence, it “should be dismissed” unless the plaintiff shows compelling reasons to proceed; the passage of time alone can suffice.
- (iv) After more than five years’ cumulative complete inactivity: Courts have a “generous power” and should feel free to dismiss unless a “pressing exigency of justice” requires a trial. Examples include exceptional disadvantage faced by the plaintiff, very unusual public law cases of significant public interest, or serious misconduct by the defendant.
Kirwan also clarifies that parties are not “co‑adventurers” and that a defendant’s mere silence does not neutralise a plaintiff’s inactivity; only acquiescence or lulling the plaintiff would be relevant (paras. 14–15; see also Hogan J. at para. 190).
Primor Plc v Stokes Kennedy Crowley [1996] IR 459: Previously the dominant framework (inordinate delay; inexcusable delay; balance of justice). Kirwan re‑weighted the analysis to prioritise the passage of time and to supply dismissal thresholds.
O’Domhnaill v Merrick: Cited in Kirwan as shorthand for the high level of prejudice required to justify dismissal before the two‑year inactivity threshold.
Order 122, Rule 11 (Rules of the Superior Courts): After one year of inactivity, a party wishing to proceed must give notice; after two years, the defendant may apply to dismiss. The rule featured in correspondence urging the plaintiff to act.

2) Legal reasoning

Heslin J. carefully mapped the procedural history against Kirwan’s milestones. The facts were stark:

Three years and three months to deliver replies to particulars (Aug 2014 to Jan 2018) after a court order compelled compliance.
An additional five months to provide fuller particulars (Feb to July 2018).
Ten months from Defence (Oct 2018) to the first voluntary discovery request (Sept 2019).
Two years and five months between asking for discovery and a further threat of a motion—without ever issuing one.
Absolute silence thereafter: the defendants’ detailed discovery response of 3 April 2022 went unanswered for over two years before the dismissal motion issued in August 2024.

Even on the plaintiff‑friendly premise that a formal discovery request could count as a “step”, the court held the cumulative period of complete inactivity exceeded five years. This squarely engaged Kirwan para. 26(iv): the court “should feel free to dismiss” unless a pressing exigency of justice requires a trial.

No such exigency was identified. The court observed that none of the indicative examples in Kirwan (para. 26(iv)) applied: there was no demonstrated educational, social, or economic disadvantage hampering the plaintiff’s progress; the case was not a public law matter in which pressing public interest demanded resolution; and there was no serious defendant misconduct. The plaintiff did not file any affidavit in opposition and her solicitors had lacked instructions for some time.

Heslin J. emphasised that this was a complex case dependent on oral evidence—including the plaintiff’s recollection—over a decade after the event, with trial realistically no earlier than mid‑2026, i.e., about 15 years post‑incident. While Kirwan does not require proof of specific prejudice at the five‑year threshold, the court underscored the obvious risk of degraded memory and its impact on fair adjudication. The defendants’ affidavit also pointed to that prejudice. Although no particular witness was shown to be unavailable, the elapsed time would inevitably test the reliability of recollection concerning the 2011 landing.

The court rejected any suggestion the defendants had acquiesced: they repeatedly prodded the plaintiff (letters; motions; case‑advancing steps). The court also made two important procedural clarifications:

A solicitor’s motion to come off record (issued in October 2025) is not a step in the proceedings and did not interrupt the period of inactivity.
An adjournment sought because a solicitor lacked instructions was refused—given long notice of the motion, proper service, and the public interest in the efficient use of court resources.

Applying Kirwan robustly yet non‑mechanically (as the Chief Justice had cautioned), Heslin J. concluded that dismissal for want of prosecution was the only just outcome.

3) Impact and significance

Murphy v Aer Lingus is an early and influential application of Kirwan. It makes four contributions of practical importance:

Five‑year cumulative inactivity is dispositive absent a pressing exigency of justice. The judgment confirms trial courts will not require defendants to prove specific prejudice at this threshold; the passage of time itself weighs decisively.
What counts as a “step”: clarity on off‑record motions. The holding that a solicitor’s motion to come off record is not a step will matter in future delay applications, preventing tactical attempts to “reset the clock.”
Oral evidence cases face special jeopardy. Even under the four‑year milestone, oral‑evidence dependency typically compels dismissal unless compelling reasons exist. Murphy underscores the point by highlighting memory degradation over a 15‑year arc.
Active defendants do not acquiesce by default. Frequent reminders, motions to compel, and discovery responses preserve the defendants’ position—and may even underscore the plaintiff’s inertia.

For practitioners, the message is unambiguous:

Track inactivity meticulously against Kirwan milestones (2/4/5 years).
Serve notices of intention to proceed before the one‑year mark under Order 122, rule 11; do not rely on informal correspondence to “count” as steps.
If discovery is refused or contested, issue a motion promptly. Protracted correspondence without court action can be treated as inactivity.
Solicitors lacking instructions should move to come off record early; such motions will not shield the plaintiff from a delay dismissal.

For courts, Murphy demonstrates how Kirwan can streamline adjudication of delay motions and protect the integrity of fact‑finding where long lapses jeopardize reliable oral testimony. It also validates the use of public‑interest considerations in refusing adjournments that would squander scarce judicial resources.

Complex concepts simplified

Want of prosecution: A court’s power to dismiss proceedings where the plaintiff has failed to progress the case within a reasonable time.
Inactivity milestones (Kirwan): Key thresholds—2 years (may dismiss, usually with some added factor), 4 years (should dismiss if oral evidence is central unless compelling reasons), 5+ years (generous power to dismiss absent a pressing exigency of justice).
Pressing exigency of justice: Exceptional circumstances that justify letting a long‑dormant case proceed (e.g., severe plaintiff disadvantage; unusual public law matters with significant public interest; serious defendant misconduct).
Acquiescence: Conduct by the defendant that goes beyond mere inaction—e.g., positively encouraging or lulling the plaintiff to delay—potentially weakening a dismissal application. Not present in Murphy.
Order 122, rule 11: If no step in a year, a party wishing to proceed must give a month’s notice; after two years with no step, the defendant may apply to dismiss for want of prosecution.
“Step in the proceedings”: A formal procedural action (e.g., pleadings, motions, notices) that progresses the case. In Murphy, a solicitor’s motion to come off record is not such a step.
Voluntary discovery vs motion for discovery: Parties may request documents voluntarily, but if refused or contested, a motion should be brought promptly; extended correspondence without court action can amount to inactivity.
Dependent on oral evidence: Cases that require witnesses’ recollections at trial. The longer the delay, the more likely recollections fade, increasing the risk of dismissal under Kirwan.

Conclusion

Murphy v Aer Lingus is a clear, disciplined application of the Supreme Court’s recalibrated delay jurisprudence in Kirwan v Connors. It confirms that after five years of cumulative complete inactivity, the passage of time itself is sufficient to ground dismissal unless a pressing exigency of justice compels a trial. The court’s additional clarifications—that a motion to come off record is not a procedural step and that resource‑based public interest can justify refusing adjournments—provide useful guidance for litigants and practitioners.

The judgment’s ultimate lesson is practical: delay now truly matters in and of itself. Plaintiffs must move their cases expeditiously, especially where oral evidence is central. Defendants who consistently press for progress and avoid acquiescence are well placed to succeed on a Kirwan motion. In the broader context, Murphy will likely prompt stricter docket management and earlier engagement with discovery and motions, ensuring that litigation proceeds efficiently and trials occur while memories are still reliable.